DEPARTMENT OF EDUCATIONOFFICE FOR CIVIL RIGHTS

RACIAL INCIDENTS AND HARASSMENTAGAINST STUDENTS AT
EDUCATIONAL INSTITUTIONS; INVESTIGATIVE GUIDANCE

ACTION: Notice of investigative guidance.

SUMMARY: The Assistant Secretary for Civil Rights announces
investigative guidance, under title VI of the Civil Rights Act of
1964, that has been provided to the Office for Civil Rights (OCR)
Regional Directors on the procedures and analysis that OCR staff
will follow when investigating issues of racial incidents and
harassment against students at educational institutions. The
investigative guidance incorporates and applies existing legal
standards and clarifies OCR's investigative approach in cases
involving racial incidents and harassment.

EFFECTIVE DATE: March 10,1994.

FOR FURTHER INFORMATION CONTACT: Jeanette J. Lim, U.S. Department
of Education, 400 Maryland Avenue, SW., Room 5036 Switzer
Building, Washington, DC 20202-1174. Telephone: (202) 205-8635.
Individuals who use a telecommunications device for the deaf
(TDD) may call the TDD number at (202) 205-9683 or 1-800421-3481.

SUPPLEMENTARY INFORMATION: Title VI of the Civil Rights Act of
1964 (title VI), 42 U.S.C.2000d et seq., prohibits discrimination
on the basis of race, color, or national origin in any program or
activity receiving Federal financial assistance. The Department
of Education (Department) has promulgated regulations in 34 CFR
part 100 to effectuate the provisions of title VI with regard to
programs and activities receiving funding from the Department.
The regulations in 34 CFR 100.7(c) provide that OCR will
investigate whenever a compliance review, report, complaint, or
any other information indicates a possible failure to comply with
title VI and the Department's implementing regulations. The
Department has interpreted title VI as prohibiting racial
harassment.

The existence of racial incidents and harassment on the
basis of race, color, or national origin against students is
disturbing and of major concern to the Department. Racial
harassment denies students the right to an education free of
discrimination. To enable OCR to investigate those incidents more
effectively and efficiently, a memorandum of investigative
guidance has been distributed to OCR staff. The substance of this
memorandum and the accompanying legal compendium are being
published today with this notice to apprise recipients and
students of the legal standards, rights, and responsibilities
under title VI with regard to this issue.

The guidance outlines the procedures and analysis that OCR
will follow when investigating possible violations of title VI
based upon racial incidents and harassment. The guidance relies
upon current legal standards.

Dated: March 7,1994.

Norma V. Cantu,
Assistant Secretary for Civil Rights.

Investigative Guidance on Racial Incidents and Harassment Against
Students

This notice discusses the investigative approach and
analysis that the Office for Civil Rights (OCR) staff will follow
when investigating issues of discrimination against students
based on alleged racial incidents including incidents involving
allegations of harassment on the basis of race that occur at
educational institutions. This guidance is supplemented by a
corresponding compendium of legal resources for detailed legal
citations and examples.

Under title VI of the Civil Rights Act of 1964 (title VI)
and its implementing regulations, no individual may be excluded
from participation in, be denied the benefits of, or otherwise be
subjected to discrimination on the ground of race, color or
national origin under any program or activity that receives
Federal funds. Racially based conduct that has such an effect and
that consists of different treatment of students on the basis of
race by recipients' agents or employees, acting within the scope
of their official duties, violates title VI. In addition, the
existence of a racially hostile environment that is created,
encouraged, accepted, tolerated or left uncorrected by a
recipient also constitutes different treatment on the basis of
race in violation of title VI. These forms of race discrimination
are discussed further below.

Jurisdiction

In all cases, OCR must first decide whether it has
jurisdiction over claims involving racial incidents or
harassment. Under the Civil Rights Restoration Act of 1987, OCR
generally has institution-wide jurisdiction over a recipient of
Federal funds.

If an institution receives Federal funds, title VI
requirements apply to all of the academic, athletic, and
extracurricular programs of the institution, whether conducted in
facilities of the recipient or elsewhere. Title VI covers all of
the uses of property that the recipient owns and all of the
activities that the recipient sponsors. Title VI covers all of
these operations, whether the individuals involved in a given
activity are students, faculty, employees, or other participants
or outsiders.

Standard Different Treatment by Agents or Employees

As with other types of discrimination claims, OCR will first
apply a standard different treatment analysis to allegations
involving racial incidents perpetrated by representatives of
recipients. Under this analysis, a recipient violates title VI if
one of its agents or employees, acting within the scope of his or
her official duties, has treated a student differently on the
basis of race, color, or national origin in the context of an
educational program or activity without a legitimate,
nondiscriminatory reason so as to interfere with or limit the
ability of the student to participate in or benefit from the
services, activities or privileges provided by the recipient. In
applying this standard different treatment analysis, OCR staff
will address the following questions

Did an official or representative (agent or employee) of
a recipient treat someone differently in a way that interfered
with or limited the ability of a student to participate in or
benefit from a program or activity of the recipient?

Did the different treatment occur in the course of
authorized or assigned duties or responsibilities of the agent or
employee?

Was the different treatment based on race color, or
national origin?

Did the context or circumstances of the incident provide
a legitimate, non-discriminatory, non-pretextual basis for the
different treatment?

Where, based on the evidence obtained in the investigation,
questions 1-3 are answered "yes" and question 4 is answered "no,"
OCR will conclude that there was discrimination in violation of
title VI under this standard different treatment analysis. If
questions 1,2 or 3 are answered "no," or if questions 1 through 4
are answered "yes," OCR will find no violation under this theory.
If warranted by the nature and scope of the allegations or
evidence, OCR will proceed to determine whether the agent's or
employee's actions established or contributed to a racially
hostile environment as described below. OCR also will conduct a
"hostile environment" analysis where actions by individuals other
than agents or employees are involved.

Hostile Environment Analysis

A violation of title VI may also be found if a recipient has
created or is responsible for a racially hostile
environment i.e., harassing conduct (e.g., physical, verbal,
graphic, or written) that is sufficiently severe, pervasive or
persistent so as to interfere with or limit the ability of an
individual to participate in or benefit from the services,
activities or privileges provided by a recipient. A recipient has
subjected an individual to different treatment on the basis of
race if it has effectively caused, encouraged accepted, tolerated
or failed to correct a racially hostile environment of which it
has actual or constructive notice (as discussed below).

Under this analysis, an alleged harasser need not be an
agent or employee of the recipient, because this theory of
liability under title VI is premised on a recipient's general
duty to provide a nondiscriminatory educational environment.

To establish a violation of title VI under the hostile
environment theory, OCR must find that: (1) A racially hostile
environment existed; (2) the recipient had actual or constructive
notice of the racially hostile environment; and (3) the recipient
failed to respond adequately to redress the racially hostile
environment. Whether conduct constitutes a hostile environment
must be determined from the totality of the circumstances, with
particular attention paid to the factors discussed below.

Severe, Pervasive or Persistent Standard

To determine whether a racially hostile environment exists,
it must be determined if the racial harassment is severe,
pervasive or persistent. OCR will examine the context, nature,
scope, frequency, duration, and location of racial incidents, as
well as the identity, number, and relationships of the persons
involved. The harassment must in most cases consist of more than
casual or isolated racial incidents to establish a title VI
violation. Generally, the severity of the incidents needed to
establish a racially hostile environment under title V varies
inversely with their pervasiveness or persistence.

First of all, when OCR evaluates the severity of racial
harassment, the unique setting and mission of an educational
institution must be taken into account. An educational
institution has a duty to provide a nondiscriminatory environment
that is conducive to learning. In addition to the curriculum,
students learn about many different aspects of human life and
interaction from school. The type of environment that is
tolerated or encouraged by or at a school can therefore send a
particularly strong signal to, and serve as an influential lesson
for, its students.

This is especially true for younger, less mature children,
who are generally more impressionable than older students or
adults. Thus, an incident that might not be considered extremely
harmful to an older student might nevertheless be found severe
and harmful to a younger student. For example, verbal harassment
of a young child by fellow students that is tolerated or condoned
in any way by adult authority figures is likely to have a far
greater impact than similar behavior would have on an adult.
Particularly for young children in their formative years of
development, therefore, the severe, pervasive or persistent
standard must be understood in light of the age and
impressionability of the students involved and with the special
nature and purposes of the educational setting in mind

As with other forms of harassment, OCR must take into
account the relevant particularized characteristics and
circumstances of the victim especial] the victim's race and
age when evaluating the severity of racial incidents at an
educational institution If OCR determines that the harassment was
sufficiently severe that it would have adversely affected the
enjoyment of some aspect of the recipient's educational program
by a reasonable person, of the same age and race as the victim,
under similar circumstances, OCR will find that a hostile
environment existed. The perspective of a person of the same race
as the victim is necessary because race is the immutable
characteristic upon which the harassment is based. The reasonable
person standard as applied to a child must incorporate the age,
intelligence and experience of a person under like circumstances
to take into account the developmental differences in maturity
and perception due to age.

To determine severity, the nature of the incidents must also
be considered. Evidence may reflect whether the conduct was
verbal or physical and the extent of hostility characteristic of
the incident. In some cases, a racially hostile environment
requiring appropriate responsive action may result from a single
incident that is sufficiently severe. Such incidents may include,
for example, injury to persons or property or conduct threatening
injury to persons or property.

The size of the recipient and the location of the incidents
also will be important. Less severe or fewer incidents may more
readily create racial hostility in a smaller environment, such as
an elementary school, than in a larger environment, such as a
college campus. The effect of a racial incident in the private
and personal environment of an individual's dormitory room may
differ from the effect of the same incident in a student center
or dormitory lounge.

The identity, number, and relationships of the individuals
involved will also be considered on a case-by-case basis. For
example, racially based conduct by a teacher even an "off-duty"
teacher, may have a greater impact on a student than the same
conduct by a school maintenance worker or another student. The
effect of conduct may be greater if perpetrated by a group of
students rather than by an individual student.

In determining whether a hostile environment exists, OCR
investigators will also be alert to the possible existence at the
recipient institution of racial incidents other than those
alleged in the complaint and will obtain evidence about them to
determine whether they contributed to a racially hostile
environment or corroborate the allegations.

Finally, racial acts need not be targeted at the complainant
in order to create a racially hostile environment. The acts may
be directed at anyone. The harassment need not be based on the
ground of the victim's or complainant's race, so long as it is
racially motivated (e.g., it might be based on the race of a
friend or associate of the victim). Additionally, the harassment
need not result in tangible injury or detriment to the victims of
the harassment.

If OCR finds that a hostile environment existed under these
standards, then it will proceed to determine whether the
recipient received notice of the harassment, and whether the
recipient took reasonable steps to respond to the harassment.

Notice

Though the recipient may not be responsible directly for all
harassing conduct, the recipient does have a responsibility to
provide a nondiscriminatory educational environment. If
discriminatory conduct causes a racially hostile environment to
develop that affects the enjoyment of the educational program for
the student(s) being harassed, and if the recipient has actual or
constructive notice of the hostile environment, the recipient is
required to take appropriate responsive action. This is the case
regardless of the identity of the person(s) committing the
harassment a teacher, a student, the grounds crew, a cafeteria
worker, neighborhood teenagers, a visiting baseball team, a guest
speaker, parents, or others. This is also true regardless of how
the recipient received notice. So long as an agent or responsible
employee of the recipient received notice, that notice will be
imputed to the recipient.

A recipient can receive notice in many different ways. For
example, a student may have filed a grievance or complained to a
teacher about fellow students racially harassing him or her. A
student, parent, or other individual may have contacted other
appropriate personnel, such as a principal, campus security, an
affirmative action officer, or staff in the office of student
affairs. An agent or responsible employee of the institution may
have witnessed the harassment. The recipient may have received
notice in an indirect manner, from sources such as a member of
the school staff, a member of the educational or local community,
or the media. The recipient also may have received notice from
flyers about the incident(s) posted around the school.

In cases where the recipient did not have actual notice, the
recipient may have had constructive notice. A recipient is
charged with constructive notice of a hostile environment if,
upon reasonably diligent inquiry in the exercise of reasonable
care, it should have known of the discrimination. In other words,
if the recipient could have found out about the harassment had it
made a proper inquiry, and if the recipient should have made such
an inquiry, knowledge of the harassment will be imputed to the
recipient. A recipient also may be charged with constructive
notice if it has notice of some, but not all, of the incidents
involved in a particular complaint.

In some cases, the pervasiveness, persistence, or severity
of the racial harassment may be enough to infer that the
recipient had notice of the hostile environment (e.g., a racially
motivated assault on a group of students). A finding that a
recipient had constructive notice of a hostile environment meets
the notice requirement of the analysis.

If the alleged harasser is an agent or employee of a
recipient, acting within the scope of his or her official duties
(i.e., such that the individual has actual or apparent authority
over the students involved), then the individual will be
considered to be acting in an agency capacity and the recipient
will be deemed to have constructive notice of the harassment. If
the recipient does not have a policy that prohibits the conduct
of racial harassment, or does not have an accessible procedure by
which victims of harassment can make their complaints known to
appropriate officials, agency capacity and thus constructive
notice is established.

The existence of both a policy and grievance procedure
applicable to racial harassment (depending upon their scope,
accessibility and clarity, and upon the acts of harassment) is
relevant in the determination of agency capacity. A policy or
grievance procedure applicable to harassment must be clear in the
types of conduct prohibited in order for students to know and
understand their rights and responsibilities. As discussed above,
in the education context, the person from whose perspective the
apparent authority of an agent or employee of a recipient must be
evaluated is a reasonable student of the same age, intelligence
and experience as the alleged victim of the harassment.

Finally, in order to find that the recipient had a duty to
respond to notice of a racially hostile environment, OCR must
examine the facts and circumstances to establish that the
recipient knew or should have known that the conduct was of a
racial nature or had sufficient information to conclude that it
may have been racially based. OCR will consider whether the
incident involved explicitly racial conduct or whether the
circumstances indicate that, through symbols or other persuasive
factors, the recipient should have recognized that the conduct
was in fact, or was reasonably likely to have been, racial (e.g.,
the hanging of nooses, random violence against minorities, etc.).

Recipient's Response

Once a recipient has notice of a racially hostile
environment, the recipient has a legal duty to take reasonable
steps to eliminate it. Thus, if OCR finds that the recipient
took responsive action, OCR will evaluate the appropriateness of
the responsive action by examining reasonableness, timeliness,
and effectiveness. The appropriate response to a racially hostile
environment must be tailored to redress fully the specific
problems experienced at the institution as a result of the
harassment. In addition, the responsive action must be reasonably
calculated to prevent recurrence and ensure that participants are
not restricted in their participation or benefits as a result of
a racially hostile environment created by students or
non-employees.

In evaluating a recipient's response to a racially hostile
environment, OCR will examine disciplinary policies, grievance
policies, and any applicable anti-harassment policies. OCR also
will determine whether the responsive action was consistent with
any established institutional policies or with responsive action
taken with respect to similar incidents.

Examples of possible elements of appropriate responsive
action include imposition of disciplinary measures, development
and dissemination of a policy prohibiting racial harassment,
provision of grievance or complaint procedures, implementation of
racial awareness training, and provision of counseling for the
victims of racial harassment.

Conclusion

OCR will investigate allegations of racial incidents where
the incidents fall within its jurisdiction. Based on the facts
and circumstances of each case OCR will use either or both the
standard different treatment analysis and the hostile environment
analysis to determine whether title Vt has been violated.

If OCR determines that an agent or employee, acting within
the scope of his or her employment, treated someone differently
on the basis of race, color, or national origin without a
legitimate, nondiscriminatory reason for the treatment (i.e.,
direct different treatment), then OCR will conclude that Title Vt
was violated. If OCR determines that a racially hostile
environment exists at a recipient, the recipient had notice of
it, and the recipient failed to take adequate action in response
to the hostile environment, OCR will also find a violation. If
OCR determines that a hostile environment was not established, or
that a hostile environment was established but that the recipient
either (1) did not have notice of it; or (2) had notice of it and
took adequate action in response, OCR will find no violation.

Appendix Racial Incidents and Harassment Against Students
- Compendium of Legal Resources

This compendium provides an outline summarizing key legal
resources (including statutes, regulations, cases, and letters of
findings) to serve as a reference for the Office for Civil Rights
(OCR) staff in investigating possible discrimination against
students based on racial incidents including incidents
involving allegations of harassment on the basis of race that
occur at educational institutions. It is intended to be used in
conjunction with the investigative guidance on racial incidents
and harassment, and follows the same general outline as that
guidance.

The investigation and analysis of cases under title Vt of
the Civil Rights Act of 1964, 42 U.S.C. 2000d, (title Vt) relies,
to a large extent, on case law developed under Title VII of the
Civil Rights Act of 1964,42 U.S.C. 2000e, which prohibits
discrimination on the basis of race, color, national origin, sex,
and religion in employment. See Dillon County District No. I
and South Carolina State Department of Education, No. 84-VI-16
(Civil Rights Reviewing Auth.1987); United States v. LULAC, 793
F.2d 636, 648-49 (5th Cir. 1986); Georgia State Conference of
Branches of NAACP v. Georgia, 775 F.2d 1403,1417 (11th Cir.
1985); and NAACP v. Medical Center, Inc. 657 F.2d 1322 (3d
Cir.1981). See also, generally, EEOC Revised Enforcement Guidance
on Recent Developments in Disparate Treatment Theory, No. N-
915.002 (July 14,1992).

1. Jurisdiction

OCR must first decide whether it has jurisdiction over a
claim involving racial incidents or harassment. OCR has
jurisdiction if the complaint alleges that the racially based
conduct occurred in the context of an operation of an elementary,
secondary, or postsecondary school or institution, or other
entity that is a recipient of Federal funds.

Title Vt prohibits race discrimination in programs and
activities that receive Federal financial assistance. See also 34
CFR part 100 (regulations effectuating provisions of title Vt).

B. OCR Has Institution-Wide Jurisdiction

Under the Civil Rights Restoration Act of 1987, OCR
generally has institution-wide jurisdiction over a recipient of
Federal funds.

C. Allegation Must Relate to an Operation of Recipient

Discrimination must be alleged in an "operation" of a
recipient. See 42 U.S.C. 2000d-4a.

D. Specific Discriminatory Actions Prohibited

The regulations implementing Title Vt include provisions
prohibiting discrimination based on race in terms of:

Services: Provision of services or other benefits. 34
CFR 100.3(b)(1)(iii).

Privileges: Restriction of an individual's enjoyment of
an advantage or privilege enjoyed by others.34 CFR
100.3(b)(1)(iv).

Participation: Opportunities to participate. 34 CFR
100.3(b)(1)(vi).

The regulations also include a general, catchall provision
prohibiting race discrimination. See 34 CFR 100.3(b)(5).

II. Standard Different Treatment by Agents or Employees

As with other claims of race discrimination under Title VI,
OCR should first apply a standard different (disparate) treatment
analysis to allegations involving racial incidents perpetrated by
representatives of recipients. In doing so, OCR must determine
whether a student was treated differently than other students on
the basis of race without a legitimate, nondiscriminatory,
non-pretextual reason.

The basic elements of a different treatment case were set
out by the U.S. Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) (focusing on indirect evidence of such
treatment), a Title VII employment case. See also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983);
Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981).

A. Prima Facie Case

Identify the racial group to which the complainant
belongs for purposes of differential treatment analysis.

Determine whether the complainant was treated
differently than similarly situated members of other racial
groups with regard to a service, benefit, privilege, etc., from
the recipient. See, e.g., University of Pittsburgh, OCR Case No.
03-89-2035 (campus police treated black students more severely
than white students); Roosevelt Warm Springs Institute for
Rehabilitation, OCR Case No. 04-893003 (similar).

After a prima facie case of race discrimination has been
established against the recipient, OCR must then determine
whether the recipient had a legitimate, nondiscriminatory reason
for its action(s) which would rebut the prima facie case against
it.

C. Recipient s Rebuttal Overcome With Showing of Pretext

If the prima facie case of discrimination is rebutted, OCR
must next determine whether the recipient's asserted reason for
its action(s) is a mere pretext for discrimination. Ultimately
however, the weight of the evidence must convince OCR that actual
discrimination occurred. See St. Mary's Honor Center v. Hicks,
113 S.Ct. 2742 (1993) (under title VII disparate treatment
analysis, ultimate burden of persuasion regarding intentional
discrimination remains at all times with plaintiff) .

Whether conduct constitutes a hostile environment must be
determined from the totality of the circumstances. See Harris v.
Forklift Systems, Inc., 114 S.Ct. 367 (1993) (under title VII.
factors to consider may include frequency and severity of
discriminatory conduct, whether it is physically threatening or
humiliating or merely offensive, and whether it interferes with
work performance; psychological harm is not required but may be
taken into account like any other relevant factor); Johnson v.
Bunny Bread, 646 F.2d 1250,1257 (8th Cir.1981) (court examined
nature, frequency, and content of racial harassment, as well as
identities of perpetrators and victims). See also Snell, 782 F.2d
at 1103 (citing Henson v. City of Dundee, 682 F.2d 897,904 (11th
Cir. 1982)) (same standard for sexual harassment).

A. Harassment Must Be Severe, Pervasive or Persistent

1. Pervasive or Persistent

Where the harassment is not sufficiently severe, it must
consist of more than casual or isolated racial incidents to
create a racially hostile environment. Compare Trenton Junior
College, OCR Case No. 07-87-6006 (title Vt violated where college
failed to provide adequate security for black basketball players
who were subjected to a break-in, cross-burning, and placement of
raccoon skins at their campus residences) with University of
California, Santa Cruz, OCR Case No. 09-91-6002 (no finding of
racial harassment where OCR found only isolated individual
incidents over three year period). See also, e.g., Snell, 782
F.2d at 1103 ("To establish a hostile atmosphere, * * *
plaintiffs must prove more than a few isolated incidents of
racial enmity * * *. Casual comments, or accidental or sporadic
conversation will not trigger equitable relief"); Gates Rubber
Co., 833 F.2d 1406; Powell v. Missouri State Highway and
Transportation Department, 822 F.2d 798 (8th Cir.1986); Moylan v.
Maries County, 792 F.2d 746 (8th Cir. 1986); Henson, 682 F.2d at
904 (quoting Rogers, 454 F.2d at 238).

OCR and Federal courts have found a hostile environment
where there was a pattern or practice of harassment, or where the
harassment was sustained and nontrivial. See, e.g., Wapato School
District No. 207, OCR Case No. 10-821039 (Title Vt violated where
teacher repeatedly treated minority students in racially
derogatory manner). Compare Walker v. Ford Motor Co., 684 F.2d
1355 (11th Cir. 1982) (hostile environment where use of
derogatory terms was "repeated, continuous, and prolonged") with
Gilbert v. City of Little Rock, 722 F.2d 1390 (8th Cir. 1983)
(hostile environment not created by isolated and allegedly
unrelated racial slurs), cert. denied.466 U.S. 972 (1984).

2. Severe

The severity of individual incidents must also be
considered. See, e.g., Vance v. Southern Bell Telephone and
Telegraph Co., 863 F.2d 1503,1510-11 (11th Cir. 1989)
(determination whether conduct is "severe and pervasive" does not
turn solely on number of incidents; fact-finder must examine
gravity as well as frequency) (decided under 42 U.S.C. 1981);
Carrero v. New York City Housing Authority, 890 F.2d 569,578 (2d
Cir. 1989) ("It is not how long the * * * obnoxious course of
conduct lasts. The offensiveness of the individual actions
* * is also a factor to be considered.").

Generally, the severity of the incidents needed to establish
a racially hostile environment varies inversely with their
pervasiveness or persistence. See EEOC Policy Guidance on Current
Issues of Sexual Harassment, No. N915.050 (Mar. 19,1990) ("the
more severe the harassment, the less need to show a repetitive
series of incidents").

a. Special mission and duties of educational institutions.
The unique setting and mission of an educational institution must
be taken into account when OCR evaluates the severity of racial
harassment under title Vt. School officials have a duty to
provide a nondiscriminatory environment conducive to learning.
See generally 34 CFR part 100 (regulations prohibiting any form
of race discrimination which interferes with educational programs
or activities under title Vt).

b. Characteristics and circumstances of victim especially
race and age. OCR must take into account the characteristics and
circumstances of the victim on a case-by-case basis particularly
the victim's race and age when evaluating the severity of racial
incidents at an educational institution. See Harris v.
International Paper Co., 765 F. Supp.1509, 1515-16 (D. Me. 1991)
(the appropriate standard to apply in a "hostile environment
racial harassment case is that of a 'reasonable black person' ").
See also, e.g., Ellison v. Brady, 924 F.2d 872 (5th Cir. 1991)
(discussing differences in perspectives of men and women toward
sexual harassment, and need to examine harassment from
perspective of reasonable victim with characteristic upon which
harassment was based).

The reasonable person standard as applied to children is
"that of a reasonable person of like age, intelligence, and
experience under like circumstances." Restatement (2d), Torts
Section 283A (1965) (Comment b: "The special standard to be
applied in the case of children arises out of the public interest
in their welfare and protection * * * "). See also, e.g.,
Honeycutt v. City of Wichita, 247 Kan. 250,796 P.2d 549 (Kan.
1990) (adopting Restatement standard); Standard v. Shine, 278
S.C. 337, 295 S.E.2d 786 (S.C.1982) (same); Camerlinck v. Thomas,
209 Neb. 843, 312 N.W.2d 260 (Neb. 1981) (same).

c. Nature of incident. The nature of the incident(s) should
also be considered. See, e.g., Vance v. Southern Bell Telephone
and Telegraph Co., 863 F.2d at 1506-10 (hostile environment
created where noose was hung twice at employee's workstation);
Watts v. New York City Police Department, 724 F. Supp. 99,105
(S.D.N.Y.1989) (same, based on two sexual assaults).

d. Size of recipient and location of incidents. The size of
the recipient and the location of the incidents also may be
important.

e. Identity of individuals involved. The identity, number,
and relationships of the individuals involved will also be
considered on a case-by-case basis. See, e.g., Wapato School
District No. 207, OCR Case No.10-82-1039 (racial harassment of
students by teacher was particularly opprobrious).

f. Other incidents at the recipient. OCR will also consider
other racial incidents at the institution. See, e.g. Midwest
City-Del City Public Schools OCR Case No. 06-92-1012 (finding of
racially hostile environment based in part on several racial
incidents at school which occurred shortly before incidents in
complaint).

g. Harassment need not be directed specifically at
complainant or tangibly harm complainant or victim. The
regulations implementing Title Vt provide that a complaint may be
filed by i'[a)ny person who believes himself or any specific
class of individuals to be subjected to discrimination prohibited
by this part." 34 CFR 100.7(b). Thus, in hostile environment
cases, the harassment need not be targeted specifically at the
individual complainant. See Waltman v. International Paper Co.,
875 F.2d 468, 477 (5th Cir. 1989) (all sexual graffiti in office,
not just that directed at plaintiff, was relevant to plaintiff's
claim); Hall v. Gus Construction Co., 842 F.2d 1010, 1015 (8th
Cir. 1988) (evidence of sexual harassment directed at others is
relevant to show hostile environment); Gates Rubber Co., 833 F.2d
at 1415 ("one of the critical inquiries in a hostile environment
claim must be the environment" as a whole) (emphasis in
original); Walker v. Ford Motor Co., 684 F.2d 1355,1358-59 (11th
Cir. 1982) hostile environment established where racial
harassment made plaintiff" feel unwanted and uncomfortable in his
surroundings," even though it was not directed at him).

The harassment need not be based on the ground of the
complainant's or victim's race, so long as it is racially
motivated. See, e.g., Center Grove Community School, OCR Case
No.1591-1168 (title VI violated where white girl was forced to
withdraw from all white school, as result of harassment by
classmates which included note criticizing her association with
black student at another school).

To establish a hostile environment harassment need not
result in a tangible injury or detriment to the complainant or
the victim of the harassment. Vinson 477 U.S. at 64. See also,
e.g., Harris v. Forklift Systems, Inc., 114 S.Ct. at 371 (under
title VII several factors are considered including whether
behaviors interfere with work performance psychological harm is
not required but may be taken into account like any other
relevant factor); Gilbert, 722 F.2d at 1394 (environment "which
significantly and adversely affects the psychological well-being
of an employee because of his or her race" is enough to
constitute title VII violation); Bundy v. Jackson, 641 F.2d 934,
943-45 (D.C. Cir.1981) (protection against race and sex
discrimination extends to "psychological and emotional work
environment").

B. Notice

A recipient has a duty to provide a nondiscriminatory
educational environment, but it must somehow receive notice of
racial harassment in order to be found responsible for it. See
Vinson, 477 U.S. at 72; see also Steele v. Offshore Shipbuilding,
Inc., 867 F.2d 1311 (11th Cir. 1989); Lipsett v. University of
Puerto Rico, 864 F.2d 881 (1st Cir.1988).

A recipient may be found liable where it reasonably should
have known of the harassment e.g., because the harassment was so
pervasive that its awareness may be inferred. See Paroline v.
Unisys Corp., 879 F.2d 100 (4th Cir. 1989) (liability may be
imputed where employer knew or should have known about prior
conduct of harasser toward other women), vacated in part on other
grounds, goo F.2d 27 (4th Cir. 1990): Yates v. Avco Corp., 819
F.2d 630 (6th Cir. 1987) (constructive notice where employee
harassed women on a daily basis); Waltman, 875 F.2d 468
(possibility of constructive notice where sexual graffiti existed
in numerous locations); Vance v. Southern Bell Telephone and
Telegraph Co., 863 F.2d at 1510-11; Swentekv. USAir, Inc., 830
F.2d 552 (4th Cir. 1987).

If the alleged harasser is an agent or employee of a
recipient, acting within the scope of his or her official duties
(i.e., such that the individual has actual or apparent authority
over the students involved), then the individual will be
considered to be acting in an agency capacity and the recipient
will be deemed to have constructive notice of the harassment.
See, e.g., Kauffman v. Allied Signal, Inc., Autolite Division,
970 F.2d 178 (6th Cir.) ("scope of employment" standard for
holding employers liable for supervisory harassment is based on
traditional agency principles, such as when and where harassment
took place, and whether it was foreseeable), cert. denied, 113
S.Ct. 831 (1992). See also EEOC Policy Guidance on Current Issues
of Sexual Harassment, N-915.050 (Mar. 19, lgg0) (apparent
authority exists where third parties reasonably believe that
actions of supervisor represent exercise of authority possessed
by virtue of employer's conduct).

In evaluating whether constructive notice should be imputed
to a recipient, the availability, coverage and public
dissemination of anti-discrimination policies and grievance
procedures for students will be considered in determining whether
the recipient has made a sufficient effort to become aware of
racial incidents if and when they occur. See Meritor Savings
Bank, 477 U.S. at 72-73 (existence of uninvoked grievance
procedures and policies against discrimination is relevant to
issue of employer liability for sexual harassment, but not
dispositive].

C. Recipient's Response

1. Duty to Take Reasonable Steps to End Harassment

Once a recipient has notice of a racially hostile
environment, it has a duty to take reasonable steps to eliminate
it. If it fails to respond adequately to the hostile environment,
then the recipient may be found to have violated title VI. See,
e.g., California State University, Chico, OCR Case No. 09-89-2106
(inadequate response to racial harassment where university had no
written grievance procedure and failed to interview most of the
individuals involved); Township High School District No. 214, OCR
Case No' 05-82-1097 (OCR found violation where school district
failed to take adequate steps to correct repeated racial
harassment by students, of which employees were aware). See also,
e.g., Snell v. Suffolk County, 782 F.2d 1094 (2d Cir. 1986)
(responsibility depends on gravity of harm, nature of work
environment, and resources available); HaZl v. Gus Construction
Co., Inc., 842 F.2d 1010 (8th Cir. 1988) (employer will be liable
for failing to discover what is going on and to take remedial
steps when actions are so numerous, egregious, and concentrated
as to add up to campaign of harassment); Paroline. 879 F.2d 100
[4th Cir. 1989): Henson v. City of Dundee, 682 F.2d 897, 904
(11th Cir. 1982).

2. Response or Remedy Should Redress Actual Problems

The appropriate response or remedy for a hostile environment
should be tailored to redress the specific problems experienced
at the institution. See, e.g., Trenton Junior College, OCR Case
No. 07-87-6006 (region developed remedial plan with college that
included staff training on racial harassment, payment of
compensation to harassed students and individuals who assisted
the students in arranging for their safety, implementation of
special efforts including financial aid to recruit black
students, and development of plan for handling future harassment
complaints).

3. Response Must Reasonably Attempt to Prevent Recurrence

The responsive action taken by a recipient must be
reasonably calculated to prevent recurrence and ensure that
individuals are not restricted in their participation or benefits
as a result of a racially hostile environment created by students
or non-employees. See, e.g., Brooms v. Regal Tube Co., 881 F.2d
412 (7th Cir. 1989) (response must be reasonably calculated to
prevent further harassment under particular facts and
circumstances of case at time allegations are made; courts should
not focus solely on whether remedial activity ultimately
succeeded, but should determine whether total response was
reasonable); Waltman v. International Paper Co., 875 F.2d 468,476
(5th Cir.1989) (response must be reasonably calculated to halt
harassment); Bundy v. Jackson, 641 F.2 934 (D.C. Cir. 1981)
(employer liable where supervisor had full notice of harassment
and did nothing to stop or investigate practice; employer must
take all necessary steps to investigate and correct
harassment including warnings, appropriate discipline, and other
means of preventing harassment).